The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Council’s allocation of school places for children with Education Health and Care plans. This is because the complainant used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) against the place allocated for her son, and this places the complaint outside our jurisdiction.
The complaint
The complainant, Mrs X, complains that the Council’s allocation process for school places for children with Education Health and Care (EHC) plans, and for communication with parents, is flawed.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X’s son has an EHC plan. Her complaint concerns the process of naming a new school for her son for transfer to the secondary phase of education. She argues that the system is flawed and that the Council fails to communicate properly with parents.
The correspondence Mrs X has provided shows that the Council issued an amended EHC plan for her son in March 2024. The school named in the EHC plan was not the school Mrs X wanted for her son, and she appealed to the SEND Tribunal. She believes the Council failed to properly consider her son’s needs and to consult with her before naming the school, which she says is not appropriate for him.
The Ombudsman cannot investigate Mrs X’s complaint. The evidence shows that the central matter is her disagreement with the Council’s decision to name a specific school in her son’s EHC plan. It is not for the Ombudsman to take a view on whether that decision was flawed. Whether the school is suitable for Mrs X’s son is not a matter for us.
Mrs X disagreed with the Council’s decision, so her recourse was to appeal to the SEND Tribunal. When an appeal is made, the Ombudsman cannot investigate the matter by law. This is the case whether or not the appeal proceeds to a tribunal hearing. The alleged failings in consideration and communication are bound up with the decision which is subject to appeal and therefore fall outside the Ombudsman’s jurisdiction.
Final decision
We cannot investigate Mrs X’s complaint because she has used her right to appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman